Archive for the ‘Judicial Skills’ Tag

Our last blog entry asked, “Where to start?” A good case could be made that good judging often starts with good listening. After all, for the average trial judge, where does the information come from? A great deal comes from a witness, an attorney, a probation officer, or someone else who speaks to the judge in the courtroom.

Yet how much training does the average judge get on listening skills? None.

Contrast this with the training we all get in reading. Reading comprehension is taught and studied as we go through elementary and secondary education—but we don’t get trained in listening skills or tested for listening comprehension.

When Kevin Burke and I do half-day or full-day training programs, we often include a listening-skills test from HRDQ, which comes with a booklet providing tips for improving those skills. You can take the online version of the test for $16. (Psychology Today offers its own listening-skills test online for $7.) Both sets of tests rely upon self-reporting about how you approach listening situations.

HRDQ breaks down its suggestions into three categories:
• Staying Focused: Sometimes we’re our own worst enemy when it comes to listening—we have lots of other things on our mind. The careful listener prepares to give the speaker full attention, monitors whether attention strays, and corrects the situation if it does.
• Capturing the Message: We need to be open-minded to capture the message the speaker is trying to send rather than our preconceived notion of what is being said. This can be especially true for judges who hear (or think they hear) the same stories day after day. Offering a summary of what you’ve heard so that the speaker can confirm you’ve got it right can help.
• Helping the Speaker: Not every speaker can handle a judge’s interruptions or distracting verbal comments. If you’re really trying to listen to what the speaker wants you to hear, you’ll be willing to make the environment conducive for good communication.

Given the extent to which good listening skills can be critical to judicial performance, this is an area that deserves greater emphasis. And it fits nicely with procedural fairness: how can a litigant perceive that we’ve given them voice—by listening, understanding, and addressing their concerns—if we haven’t first given the listening part a good effort?

Let us know what you think. How do you maintain your focus during a long day on the bench?

There is ample material about procedural fairness on ProceduralFairness.org for judges and court administrators to start the process of making themselves and their courts more effective. The question is where to begin that process. There are two levels on which procedural fairness principles can be implemented in order to begin improving court outcomes and public satisfaction.

Most immediately, the individual judge can become more adept at demonstrating the criteria of procedural fairness during their interactions with litigants, lawyers, witnesses and others. Relevant tools on ProceduralFairness.org include descriptions of programs that videotape judges while on the bench to provide them feedback to use for self-improvement, as well as video and print resources that can be used to create judicial education courses on procedural fairness. The “Resources” tab includes “tips for judges” that can serve as a check-list to guide their behavior. Similarly, individual court administrators can become more effective by embracing procedural fairness principles in their interactions with subordinates.

Second, an entire trial court or court division can revise its policies and procedures in ways that seem likely to promote behaviors that are perceived as procedurally fair. These changes can be subtle but still highly effective.
Whether the target for change is the individual judge or an entire court, a possible starting point is to reflect on how knowledge of procedural fairness can help you make sense of successes in the past. Here are two examples of hindsight, brought on by learning about procedural fairness. Both examples come from a series of conversations with presiding trial court judges initiated to learn their reaction to a comprehensive judicial branch-wide program promoting procedural fairness principles.

In the first example, the presiding judge of a medium-size court (circa 30 judges) was already a believer in the program. When she became presiding judge, she was alarmed by the pile on her desk of phone message slips and letters, all containing complaints from small claims litigants that they had not had their day in court. When she asked her assistant about the pile, she learned that that such communications were constantly flowing in. Along with several other judges and her court administrator, the presiding judge went through the complaints. They began to notice a pattern – many of the litigants felt that their case had not been adequately considered. The judges identified as the problem their court’s practice of not giving small claims case decisions from the bench as contributing to this sentiment. Instead of giving the decisions from the bench, the court sent litigants form letters, some weeks after their trial, with the equivalent of “won” or “lost” checked off. A change to the letter remedied the problem. The judges identified five or so main reasons that a small claims litigant might end up on the losing side. With the relevant sentences inserted in each letter, the flow of complaints dwindled and then virtually ceased. The new, reasoned approach communicated that the decisions had been reached through a fair process. For the judges, learning about procedural fairness theory made sense of the success of their revised approach to small claims court.

Another “home grown” example of procedural fairness is a practice that surfaced in conversation with the presiding judge of another medium-sized trial court in the same state. Her court has adopted the practice of formally swearing in all new staff as court employees. The presiding judge personally administers the oath, with other judges and court staff as an audience. For this judge, hearing about procedural fairness made sense of the apparent benefits the court has gained from the inclusive, respectful manner in which it treats its employees.

In sum, a look to past experience may be a useful starting point for those considering the potential value of taking a procedural fairness approach to personal improvement or court reform. Ask yourself what has worked and what has not worked, and think if the lens of procedural fairness offers insights into how to do a better job.
David Rottman

Two recent procedural fairness blogs try to identify workable criteria of procedural fairness in appellate courts and especially during oral arguments. The bloggers rightly point out the importance of how judges conduct the proceedings and emphasize the importance of civility in questioning both sides and letting both sides address the court..

However, isn’t the acid test that attorneys or pro se litigants apply whether the judges understand the issues in the case? If so, isn’t a pertinent and operational criterion that the judges know the facts? Presumably, U.S. Supreme Court Associate Justice Antonin Scalia flunked this test when he brought up the Cornhusker Kickback in the recent argument over the Affordable Health Care Act. His behavior suggested an incomplete and incorrect understanding of the provisions of the law under review.

A related test concerns what the judges say about the briefs in a case. If so, isn’t it also pertinent and feasible to assess appellate judges by expecting them to address the dispositive issues submitted in the briefs raised by counsel or pro se litigants? Certainly judges are entitled to ask other questions that they believe revolve around what they think are the dispositive issues. However, in the American appellate system where premium value is placed on the briefs, shouldn’t oral argument recognize this established value?

One more test might focus on the authorities raised in the briefs. If so, isn’t it feasible and relevant to assess whether the most eminent previous court decisions cited by counsel or pro se litigants received some recognition? Yes, judges can easily make new law, but they operate in a legal system where past authority counts. And in the recent Affordable Health Care Act oral argument, I didn’t hear a lot of discussion about previous and relevant U.S. Court of Appeals decisions. That omission was striking to me as an observer.

It seems to me that additional tests are possible that concern the judges understanding of the issues.Those tests are worthy of future research and legal analysis, in my opinion.

Roger Hanson lives in Denver and is engaged in legal research for the purposes of legal reform. He assisted the Right Honourable the Lord Woolf in his report of civil justice in England and Wales and has worked in Afghanistan and the Philippines in addition to American state and federal appellate courts. He always roots for the Kansas Jayhawks.

In our last blog post, we said that the public attitudes about the judicial system at all levels could be significantly impacted by how well the justices of the United States Supreme Court adhered during oral argument to the elements of procedural fairness—voice, neutrality, respect, and trustworthy authorities. So how did the justices do? It’s an important question: This case has the potential to increase the sense of legitimacy in judicial decisionmaking, and it also has the potential to be a train wreck. Despite the importance of oral arguments, whether one of those two extremes will occur will be very dependent upon the final written opinion. But the oral arguments certainly set the stage for how people will view the process by which this case is decided.

On the whole, the justices performed reasonably well during oral arguments. Most asked good questions that seemed to be honest attempts to explore the strengths and weaknesses of each party’s positions. And this was certainly the case for the two justices whose role in the oral arguments probably mattered the most in public perception: Chief Justice John G. Roberts, Jr. and Justice Anthony M. Kennedy—Roberts because as chief justice he runs the show, and Kennedy because he is widely seen as the swing justice these days when the court is closely divided.

Both Chief Justice Roberts and Justice Kennedy asked questions of attorneys both for and against the Affordable Care Act. And both tried to explore the issues in an even-handed way. For example, while Roberts asked tough questions of the government’s lawyer regarding the individual mandate, he also interrupted one of the attorneys arguing the other side to have him respond to what Roberts perceived as the government’s main point. Kennedy openly discussed “concerns” he had regarding each side’s position. To opponents of the law, Kennedy asked that they address his “concern in the case” that the young person who chooses to be uninsured is “very close to affecting” insurance rates for others “in a way that is not true in other industries.” Kennedy also asked detailed questions of the government, which based part of its defense on the principle that the government had exercised its taxing power as authority for the mandate for each individual to buy health insurance. Kennedy asked them to assume that the government indeed could have used its taxing power and directly created a single-payer national health plan. He then said that “it can be argued that this is what the government is doing; [the government] ought to be honest about the power it’s using and use the correct power,” to which the government’s attorney provided a response.

Chief Justice Roberts acted evenhandedly in presiding over the arguments. Although the justices and frequent court-watchers may be used to it, the public was no doubt surprised by how often justices interrupted one another—and also interrupted attorneys while the attorney was still responding to another justice’s question. Roberts frequently asked attorneys to return to the question that had initially been asked by another justice but not fully answered, ensuring that the advocates had a fair chance to respond to the important questions that the justices had posed to them. From a fairness standpoint, however, it would be much better if justices didn’t interrupt each other so frequently, and if they allowed attorneys to finish their answers to other justices’ questions.

Media accounts of the arguments have tended to focus on attempts to predict the outcome based upon questions asked or attitudes exhibited during oral argument. Arguments from judges who have carefully studied the briefs often will produce some questions that express tentative positions, which is to be expected. While that may be the case, most of the questions still were usually fair ones that gave the attorneys a chance to respond to what the justices saw as weaknesses in their positions. Appellate advocates appreciate having the chance to address the points that are on the minds of the justices, and the justices generally gave them that chance.

Experienced lawyers—and judges—will tell you to be cautious about reading too much into a judge’s questions and comments during oral argument. Sometimes a judge will ask questions to confirm a tentative position the judge has arrived at based on the briefs. Sometimes a judge is aware of concerns a colleague has and will use the oral argument to garner support for a majority opinion. Sometimes a judge really has reached an immovable position. Two respected federal appellate judges once kept track—for 10 months—of how often oral argument had changed their minds in a case; one judge said it had 31 percent of the time and the other 17 percent. The confidence of pundits notwithstanding, it’s not always possible to tell how a case will come out based on the oral argument.

Only one justice simply seemed tone-deaf at times to the principles of procedural fairness: Justice Antonin Scalia. From a fairness standpoint, the public wants to perceive that the justices are considering the issues based on neutral legal principles, not in any political way. Yet Justice Scalia was the only one to introduce partisan politics directly into the discussion.

During the argument about whether the Medicaid provisions were unconstitutionally coercive on the states, attorney Paul D. Clement was explaining that 26 states thought it was a bad deal for them. Scalia interrupted and framed the issue as a purely political one: “Mr. Clement, I didn’t take the time to figure this out, but maybe you did. Is there any chance that all 26 States opposing it have Republican governors, and all of the States supporting it have Democratic governors? Is that possible?” Clement replied, “There’s a correlation, Justice Scalia.” The transcript shows that Scalia then said, “Yes,” followed by laughter from the audience. Scalia left it there, and another justice asked an unrelated question.

No one—Scalia, Clement, or anyone else—suggested how the party affiliation of the governors could relate to the legal issue being discussed. As far as we can tell, Scalia injected partisan politics directly into the discussion at this point solely to lead to a laugh line. Humor does have a place in arguments before judges. But a judge interjecting humor should be careful. Justice Scalia’s laugh line may well have come at a cost, as it undermined what we presume is the court’s desired perception that it decides case like this based on neutral legal principles, without consideration of partisan political overtones.

Justice Scalia made at least one other potentially questionable comment. In an argument of this length, people—and justices are people—do make mistakes, but this mistake was profound and went to undermining the trust people need to have about judges. When discussing whether the entire law should be struck down if the court strikes down the individual mandate, Justice Scalia made a perjorative reference to a provision that was contained in the Affordable Care Act but ultimately did not become law: “[I]f we struck down nothing in this legislation but the—what’s it called, the Cornhusker kickback . . . [i]t was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the Cornhusker kickback is bad. That can’t be right.” Using the term “kickback” in referring to a provision that provided benefits to one state, Nebraska, in exchange for the vote of its senator sounds more like a political attack ad than the sort of question a neutral judge would ask. It’s odd that Justice Scalia would ask such a question because his consistent position is that in interpreting statutes, legislative-history materials (like Congressional debate transcripts) should not be consulted, let alone the sort of media coverage that led to public discussion of the Nebraska provision. And while the provision Scalia refers to as the “Cornhusker kickback” was in the Affordable Care Act, another bill repealed it before it took effect. So the use of this example seems gratuitously partisan, even if that was not the intention.

Justice Scalia made one other comment that runs contrary to the image the public wants for its Supreme Court justices, and once again he ran aground by attempting to inject humor into the proceedings. When the attorneys were arguing about whether some of the provisions of the Affordable Care Act could remain in effect if the individual-mandate provision is struck down, Scalia invoked the Eighth Amendment’s prohibition on cruel and unusual punishment while expressing astonishment that the attorney had suggested justices review the full statute to determine what could remain in effect: “[W]hat happened to the Eighth Amendment? You really want us to go through these 2,700 pages?” The transcript shows laughter in response. But Scalia ended the exchange with a more serious suggestion that it really was unfair to ask a Supreme Court justice to read the Affordable Care Act in full: “Is this not totally unrealistic? That we’re going to go through this enormous bill item by item and decide each one?”

Other justices suggested that such a review wasn’t needed, anyway, based on the nuances of past Supreme Court cases on how to decide whether to strike down an entire statute or only parts of it. But a member of the public listening to the argument could easily have been left with the impression that Justice Scalia—a lifetime appointee to the nation’s highest court—wasn’t willing to take the time to read the full statute passed by Congress to make his decision. The public wants judges who will take all the time needed to make a good decision on an important issue, and the public certainly regards the issues in play here as important ones.

It’s too early to fully evaluate the court’s handling of these cases from a procedural-fairness standpoint. The written opinion or opinions of the justices are likely to have a much more profound impact on how the American people view judicial decisionmaking than the oral arguments. Ideally, the opinion would be joined by more than five justices, which itself would suggest that the justices reached consensus on neutral principles that transcend party affiliation. But whatever the vote margin, opinions that honestly acknowledge the sincerity of opposing views while carefully explaining the basis for the decision (or dissent) will help the nation to respect the judicial process. Anything less could cause lasting damage.

Beginning Monday, March 26, 2012, public attention will focus on the United States Supreme Court in a way that’s essentially unprecedented. Sure, there have been many important cases in the Court’s history, but few have had timing like this. It’s a Presidential-election year. The health-care cases divide the country, even if the precise legal issues are not yet well understood by the public. And there are lots of pundits poised to comment, few of whom will actually be objective.

In this environment, the Court will hold three days of oral arguments on issues surrounding the Patient Protection and Affordable Care Act—the 2,400-page law called Obamacare by its detractors and the Affordable Care Act by its supporters. The nation’s 24-hour news cycle will be focused like a laser beam on the Court, but there will be no television cameras, no live radio broadcast, and no blogging, twitter, or other reporting from the courtroom.

Even so, what the public perceives about whether the justices gave a fair hearing to both sides may have a lasting impact on public attitudes toward the judicial system at all levels. What will the public be looking for? And is the Court equipped to provide it?

Based on decades of research, the public will be looking for the elements of procedural fairness—voice, neutrality, respect, and trustworthy authorities. To be sure, the public will also make judgments about the merits of this case. But there is a lot more at stake: the legitimacy of the judicial process is also being tested.

To pass that test with the public, the Supreme Court needs to conduct the argument with a keen eye on the goal of demonstrating that courts decide issues in a way different than the political debates of a presidential campaign or the legislative process. Among other things, to achieve procedural fairness, the justices will need to let attorneys actually make some points without being interrupted, to appear willing to listen (better yet, actually be willing to listen), and to avoid arguing from a clearly predetermined position.

The normal case in the U.S. Supreme Court gets one hour for oral argument. This case is getting five and one-half hours spread out over three days. Allowing that extra time was wise from many perspectives. First, justices who want to explore the issues along with the advocates will have the time to do so, rather than feeling the need to quickly stake out a position and argue for it in an attempt to persuade colleagues in advance of the justices’ private case conference where decisions are made. Second, media coverage will emphasize the extent of time devoted to hearing argument in the case, said to be unprecedented in the modern era. Third, the media will be able to explain each of the major issues during the time slot in which argument is being made.

But even with ample time, the attitudes demonstrated by the justices will frame perceptions of their fairness. Senator John McCain attended the oral argument on the McCain-Feingold campaign-finance bill that he had sponsored. When the Court ultimately ruled in Citizens United v. FEC (2010) that the government could not ban political spending by corporations in candidate elections, Sen. McCain spoke in an interview about the attitudes he had observed during oral argument:

“I was not surprised at the Supreme Court decision. I went over there to observe the oral arguments. It was clear that Justice Roberts, Alito, and Scalia, by their very skeptical and even sarcastic comments, were very much opposed to [the law.].” (CBS, Face the Nation, Jan. 24, 2010.)

Sen. McCain has certainly been around the block and heard harsh attacks. Yet he remembered several months after oral argument that there had been “very skeptical and even sarcastic comments” made by several justices.

Even though the Court refused C-SPAN’s request to televise the hearings, the Court will expedite release of transcripts and audiotapes from its normal practice, in which tapes aren’t released until the end of the week. This time, tapes and transcripts will be posted on the Court’s website as soon as they are available; the Court’s public-information office says that the morning session should be available by 2 p.m. each day and that the afternoon session on Wednesday, March 28 (the only afternoon session), should be available by 4 p.m. that day.

This means that the public will be able to hear—the same day—the tone used by justices in asking questions or, for some justices, making arguments. The admonition given recently in this blog by Minnesota appellate judge Francis J. Connolly is one that members of the U.S. Supreme Court should pay heed to next week: “We need to remember that we are not cross-examining a hostile witness but rather probing an attorney’s argument.”

Because of the media attention that will be focused on the U.S. Supreme Court next week, this will be a seminal moment for public perceptions of the justice system. The justices can do a great service to the country by demonstrating procedural fairness throughout the arguments.

Steve Leben and Kevin Burke

[For background about the Supreme Court’s proceedings on the health-care law, and for links to transcripts and audiotapes as they are released, go to SCOTUSblog.]

We often hear about the need for procedural fairness at the trial court level. This is no doubt because that is where the average citizen has his greatest contact with our judiciary. But I think we also need to make sure our appellate courts are aware of this issue and strive towards it every day.

It is easy to forget how litigants are almost an afterthought at the appellate court. Each attorney only has 15 minutes to argue and at the Minnesota Court of Appeals we do not allow the parties to sit at counsel table. Only the lawyers who are arguing the appeal can say anything. I once heard a prosecutor tell a victim’s family not to attend an oral argument concerning the defendant’s appeal of his conviction. He told the family that the court would only be interested in the legal issues and not the fact that their daughter had been murdered. He told them her name would not even be mentioned.

Even the opinions we write are couched in terms that do not discuss what the trial court got right but simply that the trial court did not commit error.

With that in mind, I would suggest a few points that appellate judges should keep in mind so that the parties and their lawyers feel that they have been “heard.”

First, perhaps before we ask any questions, we should actually let the lawyers make their argument. So often appellate judges are anxious to have some point addressed that we forget that someone actually wrote a brief and spent several thousand dollars of their client’s money so they would have the opportunity to have us listen to them.

Second, if we do engage in questioning, we should do so in a respectful manner. We need to remember that we are not cross-examining a hostile witness but rather probing an attorney’s argument.

Third, it is very important that the tone of our written opinions is not shrill or harsh. While clearly we have to explain why one side lost and the other side won, it is important not to be sarcastic. Just because the appellant lost does not mean his argument was “meritless.” I am also not a big fan of humor in opinions. If you think you have a talent for comedy, then write for The New Yorker. I doubt if the defendant whose 20-year prison sentence you are upholding will be quite as taken with your witty comments as you are. Even worse, the defendant may think you did not take his appeal seriously.

Finally, get your opinions out promptly. We have a ninety-day deadline in Minnesota and it works. Parties and attorneys need finality so they can move on with their lives. Waiting six months or more for a decision is simply not fair. By keeping these principles in mind, we can ensure that procedural fairness lasts long after oral argument has ended.

Golfers, amateur and professional, use video to watch and analyze their golf swing. Many judges who fancy themselves golfers do this (and even some judges who really are good golfers). But it’s the rare judge who uses video to analyze his or her performance as a judge. Yet video can be valuable here too.

A few years ago, Kevin Burke and I did an educational program for the trial judges of New Hampshire. In advance of it, six judges volunteered to be videotaped on the bench for half a day; Kevin and I then reviewed the videotapes and showed some clips to the group. Evaluation forms from the attendees indicated that they learned a lot from watching the videos and then discussing what was done well and what could be improved.

For the volunteer judges in New Hampshire, we had a follow-up assignment: each of them had to note two things they observed that they hadn’t paid enough attention to before seeing the tapes and to identify two things that could be improved in their on-the-bench performance. All of them gained useful insights from this. If you want to see what those judges learned, take a look at Appendix A to this paper (Procedural Fairness in the Courts of Utah), where I’ve set out in full the New Hampshire judges’ responses.

Doing a video self-assessment this way is not difficult. In New Hampshire, each judge advised those in attendance that a video was being made solely for judicial-training purposes, and that only the judge would be shown on the tape. The camera, set up to the side of the courtroom, was turned on and generally ran for about half a day. While the audio in such a setup is not ideal, it’s adequate for this limited purpose. And if a judge wants to go beyond self-assessment, the tape could be viewed by someone else who could give feedback—a communications professor or graduate student, another judge, the judge’s spouse, or someone else whose opinion the judge would respect.